Judicial  Settlement 

OF  INTERNATIONAL  DISPUTES 


No.  17 


JUSTICE  BETWEEN  NATIONS 

By 


SIMEON  E.  BALDWIN,  M.  A.,  LL.D. 


Governor  of  Connecticut ;  Director  of  the  Bureau  of  Comparative  Laiv  of  the  American 
Bar  Association  ;  Formerly  Chief  yustice  of  Connecticut ,  and  President 
of  the  American  Political  Science  Association ,  the  American 
Historical  Association ,  the  International 
Lanv  Association ,  Etc. 


AUGUST,  1914 

Published  Quarterly  by  the  American  Society  for  Judicial  Settlement  of 

International  Disputes 

BALTIMORE,  U.  S.  A. 


Entered  as  second-class  matter  March  21,  1910,  at  the  Post- 
office  at  Baltimore,  Md.,  under  the  Act  of  July  16,  18&. 


Am*rir«ut  &urt*tg  for  dlttMrlal  of 

international  Siepulrn 

(Mma 

Honorary  President,  William  Howard  Taft. 

President,  Charles  W.  Eliot, 
Cambridge,  Mass. 

Vice-President,  Theodore  Marburg, 
Baltimore,  Md. 

Secretary,  James  Brown  Scott, 

2  Jackson  Place,  Washington,  D.  C. 

Treasurer,  J.  G.  Schmidlapf, 
Cincinnati,  Ohio. 


lExrratttie  (Committee 

Charles  W.  Eliot, 

Theodore  Marburg, 

James  Brown  Scott, 

J.  G.  Schmidlapp, 

W.  W.  Willoughby, 

Henry  B.  F.  Macfarland, 

James  Brown  Scott,  ex-President, 

John  Hays  Hammond,  ex-President, 

Simeon  E.  Baldwin,  ex-President, 

Joseph  H.  Choate,  ex-President. 

Life  membership,  $100;  Sustaining  membership,  $10  a  year; 
Annual  membership,  $i  a  year. 

Remit  to  Treasurer,  J.  G.  Schmidlapp,  Cincinnati,  U.  S.  A. 

Additional  copies  of  this  or  other  issues  of  the  Judicial  Settle¬ 
ment  Quarterly  may  be  obtained  without  charge  from  the  As¬ 
sistant  Secretary. 

The  Volume  of  Proceedings  of  the  Fourth  National  Conference 
of  the  Society,  Washington,  D.  C.,  December  4-6,  1913,  is  now 
ready  and  has  been  sent  to  members.  Non-members  may  obtain 
it  from  the  publishers,  Williams  &  Wilkins  Co.,  2427  York  Road, 
Baltimore;  price,  in  cloth,  $1.00,  postpaid;  or  of  Williams  & 
Norgate,  14  Henrietta  Street,  Covent  Garden,  London,  W.  C. ; 
price,  in  cloth,  4s. 


Tunstall  Smith,  Assistant  Secretary, 

The  Preston,  Baltimore,  U.  S.  A. 


Justice  Between  Nations. 


By 

Simeon  E.  Baldwin,  M.  A.,  LL.D. 


The  American  Society  for  Judicial  Settlement  of  Inter¬ 
national  Disputes  has  been  in  active  existence  for  four 
years.  It  has  held  annual  conferences,  published  four  vol¬ 
umes  narrating  its  proceedings  at  these,  and  maintained 
a  quarterly  journal,  of  which  the  seventeenth  number  has 
now  been  reached. 

Has  it  gained  and  deserved  a  place  among  the  recognized 
agencies  that  are  working  for  the  betterment  of  the  world? 

We  submit  that  it  has. 

That  the  happiness  of  the  world  would  be  advanced  by 
the  substitution  of  some  better  mode  of  proceeding  than 
war  for  securing  justice  in  the  dealings  of  nations  with 
each  other,  if  such  a  better  mode  of  proceeding  can  be  found, 
no  one  will  deny.  Men  may  differ  as  to  what  in  its  nature 
such  justice  is.  It  may  be  that  it  differs  in  principle  from 
justice  between  individuals.  But,  such  as  it  is,  all  honest 
hearts  must  be  one  in  the  desire  to  promote  it. 

How,  now,  can  we  best  ascertain  its  proper  definition? 
Is  it  possible  to  frame  one,  as  an  abstract  proposition, 
which  will  command  universal  acceptance?  This  will 
hardly  be  contended.  It  is  denied  by  the  whole  history  of 


4 


JUDICIAL  SETTLEMENT 


mankind.  Justice  between  nations  means  one  thing  to  one 
man  and  another  to  another;  one  thing  to  one  people  and 
another  to  another;  one  thing  to  one  age  and  another  to 
another.  Mankind  does  not  climb  in  the  scale  of  intelligent 
existence  on  a  ladder  of  general  definitions.  Definitions 
are  an  expression — and  at  best  a  partial  expression— -of  the 
conclusions  of  many  particular  experiences. 

What  justice  between  nations,  in  respect  to  some  new 
point  of  difference  between  any  of  them,  demands  cannot 
be  determined  without  a  historical  review  of  what  has 
been  already  practised  in  settling  earlier  international  con¬ 
troversies.  Custom  makes  law.  Custom,  in  a  sense,  is 
law.  Every  determination  of  a  dispute  between  nations, 
whether  right  or  wrong,  serves  to  prepare  the  way  for  a 
general  definition  of  justice  between  nations  as  an  abstract 
idea.  If  right,  it  leads  straight  to  the  logical  theoretical 
result  as  a  counsel  of  perfection.  If  wrong,  it  provokes 
criticism,  leads  to  general  discussion,  and  perhaps  shows 
that  the  world  is  not  yet  ready  to  receive  such  counsel. 

Who,  then,  shall  make  this  historical  review  and  draw 
the  proper  conclusions? 

Surely,  no  one  should  be  trusted  to  do  it  with  final 
authority  who  is  not  specially  fitted  for  the  task.  Surely, 
again,  no  one  should  be  given  such  authority  until  resort 
has  been  had  to  every  means  of  avoiding  a  decision  not 
satisfactory  to  both  of  the  parties  to  the  difference. 

The  first  means  is  that  of  diplomacy.  Its  greatest  object 
is  to  prevent,  or,  if  that  cannot  be,  to  compose  international 
controversies.  It  is  the  product  of  modem  civilization. 
During  most  of  the  life  of  the  world  one  nation  has  sent 


OF  INTERNATIONAL  DISPUTES 


5 


official  representatives  to  another  only  on  special  occasions. 
There  were  no  permanent  embassies  or  legations  and  con¬ 
sulates.  Since  the  close  of  the  fifteenth  century  these  have 
gradually  become  the  rule  as  respects  all  considerable  na¬ 
tions.  It  is  due  to  the  increasing  complexity  of  interna¬ 
tional  relations.  The  greater  the  intercourse  between  two 
countries,  the  greater  is  the  need  of  some  authority  always 
at  hand  to  expedite  its  development  and  smooth  out  the 
misunderstandings  that  will  inevitably  arise. 

The  first  object  of  diplomacy  or  of  consular  establish¬ 
ments,  then,  is  to  prevent  occasions  of  difference.  The 
foreign  consul  hears  a  complaint  by  a  merchant  against  some 
claim  made  under  the  customs  laws  of  the  government  to 
which  he  is  accredited,  or  intervenes  in  some  dispute  be¬ 
tween  a  sailor  on  a  vessel  of  his  country  and  the  port 
authorities.  This  is  probably  the  end  of  it;  but,  if  not,  the 
resident  ambassador  or  minister  will  take  it  up,  and  ordi¬ 
narily  with  success.  Ninety-nine  out  of  a  hundred  of  the 
questions  which  might  become  the  cause  of  a  serious  inter¬ 
national  difference  are  thus  quietly  and  peaceably  disposed 
of  by  diplomatic  negotiation. 

In  such  settlements  justice  is  often  sacrificed.  The 
weaker  Power  yields  to  the  demands  of  the  stronger  one. 
A  claim  with  no  substantial  merits  is  admitted  as  a  matter 
of  expediency,  or  perhaps  of  personal  favor. 

But  the  right  to  make  settlements  of  this  character  is 
an  important  and  beneficial  one.  It  is  almost  as  important 
that  a  controversy,  whether  between  two  men  or  two  na¬ 
tions,  should  be  determined  promptly  as  that  it  should  be 
determined  justly.  No  real  contribution  to  the  advance- 


6 


JUDICIAL  SETTLEMENT 


ment  of  social  progress  would  be  made  by  facilitating  a 
resort  in  such  cases  to  an  international  court.  This  Society 
has  no  such  object  in  view.  The  more  frequently  disputes 
are  settled  by  voluntary  agreement  of  the  parties,  the  better 
will  it  be  for  human  governments.  Courts,  national  or  in¬ 
ternational,  must  be  kept  as  a  last  resort.  One  great  object 
of  the  lawyer  in  every  country  is  to  discourage  litigation 
by  promoting  amicable  adjustments  of  disputes.  One  great 
object  of  the  statesman  is  to  promote  such  adjustments  of 
international  controversies. 

But  when,  after  all  proper  efforts,  no  adjustments  can 
be  thus  reached,  is  it  desirable  to  provide  a  court  before 
which  the  nations  can  appear? 

This  must  depend  largely  on  the  importance  of  the 
question  in  dispute,  or  of  its  prompt  decision.  If  the  dis¬ 
pute  is  over  a  matter  of  vital  interest,  before  any  reference 
to  a  court  or  to  arbitration  full  opportunity  should  be  given 
for  interposing  the  good  offices  of  some  third  Power,  or  in 
affairs  of  grave  moment  of  several  Powers  acting  jointly. 

The  momentous  events  of  July,  1914,  are  a  strong 
illustration  of  the  expediency  of  such  an  offer  of  interpo¬ 
sition,  whenever  there  is  any  reasonable  chance  of  its  being 
kindly  received. 

The  haste  of  Austria-Hungary  in  pressing  her  demands 
upon  Servia  is  most  easily  accounted  for  by  her  unwilling¬ 
ness  to  listen  to  objections  from  other  Powers.  Neverthe¬ 
less,  if  several  of  them  had,  at  once,  united  in  a  formal 
offer  of  their  good  offices,  it  would  have  been  far  more 
difficult  for  her  to  come  out  before  the  eyes  of  the  world  and 
decline  it  than  it  was  simply  to  withdraw  the  matter  from  a 


OF  INTERNATIONAL  DISPUTES 


7 


diplomatic  consultation  proposed  by  one  of  the  great 
Powers,  and  that  a  Power  occupying  a  position  not  abso¬ 
lutely  friendly. 

We  must  take  facts  as  they  are.  Europe  is  traversed  by 
two  ranges  of  associated  nations.  Each  is  a  combination 
of  three  of  the  great  Powers.  On  the  east  is  that  of  Ger¬ 
many,  Austria-Hungary  and  Italy.  On  the  west  is  that  of 
Russia,  Great  Britain  and  France.  Between  these  ranges 
come  a  cluster  of  lesser  Powers,  whose  policy  is  neutrality, 
and  for  part  of  whom  neutrality  has  a  certain  European 
guarantee.  The  maintenance  of  peace  with  their  greater 
neighbors  has  always  been  their  great  aim.  They  are  no 
match  for  them.  In  the  European  concert,  also,  they  can, 
in  the  nature  of  things,  have  no  considerable  share.  A 
tender  of  good  offices  to  Austria-Hungary  and  Servia,  at 
the  outbreak  of  their  differences,  by  Belgium,  or  Holland, 
or  Switzerland,  would  have  been  almost  ridiculous.  Had 
such  a  tender  been  jointly  made  by  all  the  neutralized 
States  of  Europe,  from  Norway  to  Luxemburg,  it  would 
have  been  more  imposing,  though  probably  futile.  But 
had  such  a  tender  been  made  by  them  in  company  with  the 
two  non-European  great  Powers — the  United  States,  with 
its  vast  Asiatic  interests,  and  Japan — it  is  not  impossible 
that  Austria-Hungary  would  have  felt  unable  to  decline  it. 
Servia,  of  course,  would  have  joyfully  accepted  such  a 
tender  from  almost  any  quarter. 

The  whole  incident  shows  that  a  great  nation  does  not 
readily  change  a  position  which  it  has  once  definitely  an¬ 
nounced  as  respects  a  weak  one. 


8 


JUDICIAL  SETTLEMENT 


Li  Hung  Chang  wrote  in  his  diary*  in  1896:  “There  are 
always  wolves  where  there  are  sheep.  It  is  the  same  in  the 
life  of  man  and  the  lives  of  nations.”  But  wolves  are  not 
to  be  found  in  a  thickly  settled  country.  They  fly  before 
civilization.  They  are  the  common  enemies  of  the  human 
race.  Men  protect  sheep  and  kill  wolves.  So  with  the  ad¬ 
vance  and  spread  of  civilization  and  of  international  law 
may  we  expect  the  wolf  among  nations  to  recede  and  dis¬ 
appear.  We  may  expect  more.  We  may  expect  the  great 
Powers  of  the  world  to  be  more  slow  to  use  their  strength 
to  carry  in  their  favor  a  doubtful  point  of  fact  or  right. 
We  may  expect  that,  should  the  present  European  war  prove 
indecisive,  and  in  another  generation  some  fresh  occasion 
arise  for  the  outbreak,  however  passionate,  of  feelings  of 
racial  antagonism,  there  will  be  then  some  opportunity  for 
judicial  interposition,  and  for  its  proving  effectual,  because 
it  voices  the  world-wide  sentiment  of  that  future  time. 

But,  to  return  to  what  forces  are  now  at  the  service  of 
the  public  for  preventing  wars,  a  word  more  may  properly 
be  said  as  to  the  interposition  for  that  purpose  of  friendly 
Powers. 

A  proffer  of  good  offices  is  not  a  proffer  of  mediation. 
To  accept  one  is  not  to  indicate  a  willingness  to  accept  the 
other. 

The  parties  to  any  dispute  look  at  it  from  different  points 
of  view.  The  familiar  story  which  has  come  down  to  us 
from  early  times  of  the  shield  hung  up  on  high  with  one 
side  gilt  and  the  other  silver  embodies  a  great  truth.  One 


*  Memoirs,  150. 


OF  INTERNATIONAL  DISPUTES 


9 


of  two  knights  who  had  approached  it  in  different  direc¬ 
tions  spoke  of  it  to  the  other  as  a  golden  shield.  The  other 
was  equally  sure  that  it  was  silver,  and  their  difference 
was  finally  fought  out  with  sword  and  spear.  Had  a  third 
person,  familiar  with  the  facts,  because  he  had  examined 
both  sides  of  the  shield,  been  there  to  intervene,  the  dispute 
would  have  been  promptly  settled. 

The  nation  whose  good  offices  are  accepted  by  the  parties 
to  an  international  controversy  is  in  a  position  to  offer 
them  the  benefit  of  knowing  how  the  matter  looks  to  a  dis¬ 
interested  observer,  after  hearing  from  both. 

A  Spanish  proverb  says  that  he  who  has  heard  but  one 
side  of  a  controversy  has  heard  nothing.  The  sooner  each 
of  the  parties  to  a  dispute  knows  what  facts  are  claimed  by 
the  other,  and  how  these  claims  look  to  a  third  party  de¬ 
sirous  to  bring  it  to  a  peaceful  settlement,  the  better  will 
be  the  chances  of  reaching  such  a  conclusion. 

If  the  diplomatic  pourparlers  fail  of  success,  and  if  a 
tender  of  good  offices  is  declined  or  proves  fruitless,  a  third 
hope  lies  in  mediation. 

This  also  would  often  be  preferable  to  an  immediate 
effort  to  force  a  judicial  settlement,  even  were  there  a  well- 
organized  court  established  to  serve  that  purpose. 

Mediation  is  in  its  nature  facultative  and  not  obligatory. 
But  if  an  outside  Power  offers  it,  either  with  or  after  a 
tender  of  good  offices,  or  if  one  of  the  parties  to  the  con¬ 
troversy  suggests  it  to  the  other  and  acceptance  follows, 
there  arises,  in  a  certain  sense,  a  moral  duty  to  abide  by 


IO  JUDICIAL  SETTLEMENT 

the  course  recommended  by  the  mediator,  if  it  be  not  obvi¬ 
ously  unfair  and  inadmissible. 

Merignhac,  in  his  treatise  on  “Public  International 
Law/’*  states  with  clearness  this  distinction  between  good 
offices  and  mediation,  as  laid  down  by  the  leading 
authorities. 

“The  confusion,”  he  observes,  “between  the  two  terms 
of  mediation  and  good  offices  is  wholly  natural,  for  there 
are  in  the  two  pacific  processes  only  two  ways  of  occupying 
the  same  situation :  it  concerns,  in  both  cases,  a  State  which 
intervenes,  whether  by  request  or  spontaneously,  to  bring 
about  a  pacific  solution  by  its  counsels  and  influence,  with¬ 
out  imposing  its  decision  as  in  arbitration  proceedings. 
Mediation,  however,  makes  one  step  beyond  good  offices. 
Those  express  themselves  by  counsel,  acts,  negotiations 
having  for  their  end  to  bring  about  peace,  unaccompanied 
by  any  complete  examination  of  the  matter  in  dispute  on 
the  part  of  the  State  from  which  they  emanate.  The  medi¬ 
ator,  on  the  contrary,  regularly  participates  in  all  negotia¬ 
tions  down  to  their  conclusion  or  rupture,  or  charges  him¬ 
self  with  the  duty  of  examining  the  matter  in  dispute  on 
the  documents  and  proofs,  and  in  making  a  determination 
as  in  the  case  of  arbitration,  but  nevertheless  without  his 
decision’s  having  an  obligatory  character.” 

It  appears  from  the  “white-book”  issued  early  this  month 
by  the  German  government  that  prior  to  the  general  Euro¬ 
pean  war  beginning  in  August,  1914,  the  Emperor  joined 
Great  Britain  in  “mediatory  action”  at  the  Court  of  Vienna 
as  between  Russia  and  Austria-Hungary,  and  that  the  Em- 


*1,  434. 


OF  INTERNATIONAL  DISPUTES 


1 1 


peror  did  this  at  the  request  of  Russia.  It  is  currently 
reported  that  there  were  other  sincere  efforts  toward  secur¬ 
ing  a  diplomatic  settlement  put  forth,  at  or  before  the 
same  time,  by  several  European  Powers.  Events,  however, 
moved  too  quickly.  From  the  day  when  Austria-Hungary 
formulated  her  grievances  against  Servia  until  war  spread 
over  most  of  Europe,  there  was  no  time  given  for  any 
hopeful  attempt  at  mediation. 

Time  is  the  great  innovator.  It  is  also  the  great  pacifier. 
To  secure  time  for  a  patient  examination  of  points  of  dis¬ 
pute,  with  full  opportunity  for  calm  deliberation  and  re¬ 
flection,  is  always  to  give  some  assurance  of  a  just 
judgment. 

For  this  purpose  the  United  States  has  recently  made 
treaties  with  twenty  Powers,  with  provisions  adequate  to 
the  purpose.  Until  there  has  been  the  lapse  of  a  year,  giv¬ 
ing  time  for  a  full  inquiry  as  to  the  merits  of  the  contro¬ 
versy,  there  can  be  no  war.  The  treaties  in  question  are 
now  pending  before  the  Senate  on  a  favorable  report,  and 
are  between  the  United  States  and  Salvador,  Guatemala, 
Panama,  Honduras,  Nicaragua,  the  Netherlands,  Bolivia, 
Portugal,  Persia,  Denmark,  Switzerland,  Costa  Rica,  the 
Dominican  Republic,  Venezuela,  Italy,  Norway,  Peru, 
Argentina,  Brazil  and  Chile.  Like  conventions  negotiated 
with  Great  Britain  and  France  have  not  yet  been  signed. 

A  similar  result  has  been  heretofore  attained  in  several 
cases  of  importance  by  the  aid  of  Commissions  of  Inquiry. 

This  is  an  appropriate  mode  of  proceeding  wherever 
there  is  a  substantial  difference  of  opinion  as  to  a  matter 


12 


JUDICIAL  SETTLEMENT 


of  fact,  the  determination  of  which  would  naturally  and 
properly  govern  the  disposition  of  the  controversy.  It  is 
also  well  adapted  to  disputes  over  a  matter  of  mere 
punctilio.* 

It  is  not  a  time-saving  method  of  procedure,  nor  is  it 
meant  to  be.  One  of  its  best  features  is  that  it  cannot  be 
pushed  to  a  hasty  conclusion.  An  opportunity  is  thus  given 
for  passions  to  cool  and  evidence  to  turn  up. 

It  does  not  itself  assume  to  adjudicate  the  rights  of  the 
parties.  It  pronounces  on  facts,  not  on  the  conclusions 
from  them. 

A  Commission  of  Inquiry  may,  however,  without  for¬ 
feiting  the  right  to  its  name,  be  given  larger  powers.  The 
contending  nations  may  refer  to  its  decision  the  ascertain¬ 
ment  of  the  facts  and  also  the  question  of  what  action,  if 
any,  the  facts  make  reasonably  incumbent  on  either  party. 
It  then  becomes  in  some  sort  a  tribunal  of  arbitration. 

The  convention  of  1904  between  Great  Britain  and  Rus¬ 
sia,  in  relation  to  the  Dogger  bank  incident,  took  this  shape. 
Russia  had  fired  on  certain  vessels.  If  they  were  enemy’s 
ships,  she  was  justified.  If  they  were  British  fishing  smacks, 
she  was  in  fault  and  owed  a  pecuniary  reparation.  The 
Commission,  should  it  find  against  her  on  the  facts,  was 
empowered  to  assess  the  damages  and  direct  the  payment. 
It  did  find  against  her,  and  did  proceed  to  the  final  dispo¬ 
sition  of  the  controversy  in  the  mode  so  authorized. 

Commissions  of  Inquiry,  as  known  to  international  law, 
are  such  only  as  are  appointed  by  mutual  agreement  be¬ 
tween  both  of  the  parties  to  a  controversy. 

*  See  a  fuller  treatment  of  this  subject  by  Dr.  James  Brown  Scott 
in  the  Proceedings  of  this  Society  at  its  Fourth  Annual  Conference,  in 
1913,  page  243. 


OF  INTERNATIONAL  DISPUTES 


x3 


A  nation,  uncertain  whether  it  has  or  has  not  a  cause  of 
complaint  against  another,  because  the  governing  facts  are 
unsettled,  may  endeavor  to  settle  them  with  the  aid  of  a 
Commission  of  Inquiry,  appointed  by  itself.  Here  it  is 
seeking  only  to  inform  its  own  conscience.  The  results 
of  the  inquiry  would  have  no  controlling  weight  with  the 
other  nation. 

The  ex  parte  commission  created  by  President  Cleveland 
to  report  on  the  boundary  between  British  Guiana  and 
Venezuela  was  an  instance  of  such  action. 

Its  work  became  unimportant  in  consequence  of  a  treaty 
subsequently  made  between  Great  Britain  and  Venezuela, 
providing  for  the  adjustment  of  this  boundary  by  arbitra¬ 
tion,  under  which  it  was  finally  settled  in  1899. 

In  order  of  time,  the  natural  course  is,  first,  diplomatic 
negotiation  confined  to  the  parties  to  the  controversy;  sec¬ 
ond,  pourparlers ,  in  which  there  may  be  participation  by 
the  diplomatic  representatives  of  other  nations,  with  inter¬ 
ests  which  might  be  affected  by  the  controversy;  third, 
benevolent  interposition  by  a  tender  of  good  offices,  or  a 
request  for  them;  fourth,  commissions  of  inquiry;  and  fifth, 
arbitration. 

Mediation  is  a  work  of  diplomacy.  It  is  its  last  effort,' 
or  rather  its  last  effort,  in  the  present  condition  of  inter¬ 
national  law,  is  to  arrange  for  a  settlement  by  arbitration. 

Arbitration  may,  of  course,  be  proposed  by  one  of  the 
parties  to  the  other  at  any  previous  stage  of  negotiation. 

It  has  been  found  that  arbitration  is  most  likely  to  prove 
a  just  and  final  settlement  when  the  arbitrators  are  men 


14 


JUDICIAL  SETTLEMENT 


not  only  of  wide  historical  and  legal  acquirements,  but  of 
a  judicial  temperament.  That  they  have  this  temperament 
is  measurably  to  be  presumed  from  their  having  previously 
occupied  judicial  positions  in  their  own  country.  A  sug¬ 
gestive  address  bearing  on  that  point  was  given  before  this 
Society  by  William  Renwick  Riddell,  of  Toronto,  at  its 
Washington  Conference,  in  1913.* 

In  favoring  a  resort  to  arbitration,  where  diplomacy 
fails,  the  United  States  has  an  honorable  record.  It  has 
been  a  party  to  eighty-three,  including  a  few  diplomatic 
settlements  in  the  nature  of  arbitral  adjustments.  Awards 
have  been  made  in  these  which  aggregate  over  ninety  mil¬ 
lion  dollars.** 

Part  probably  of  the  reason  why  the  United  States  has 
resorted  to  arbitration  so  often  is  that  diplomacy  has  not 
had  with  us  the  character  of  a  scientific  profession,  which 
it  sustains  in  Europe.  We  have  had  fewer  men  specially 
trained  for  and  in  it,  and  when  we  have  had  them  we  have 
not  kept  them  as  long  in  continuous  service.  Changes  of 
political  representation  have  involved  too  many  changes  of 
diplomatic  representation. 

This  Society  believes  that  the  time  is  ripening  for  an 
advance  from  an  international  tribunal  of  arbitration  to  an 
international  court  of  justice. 

*  Proceedings  of  the  Conference,  11.  To  the  names  of  Judges 
mentioned  by  Mr.  Justice  Riddell  who  have  acted  in  international  arbi¬ 
tration  should  be  added  Alexander  S.  Johnson,  of  New  York,  whom 
he  describes  as  one  of  the  two  arbitrators  on  the  Hudson  Bay  claims, 
but  not  as  having  held  a  judicial  position.  He  had.  when  chosen,  in 
fact  been  a  Judge  of  the  New  York  Court  of  Appeals,  and  was  after¬ 
ward  a  United  States  Circuit  Judge. 

**  Substantially  three-fourths  of  this  went  to  the  United  States  and 
one-fourth  came  from  the  United  States.  Arbitrations  and  Diplomatic 
Settlements  of  the  United  States,  Pamphlet  No.  1,  Carnegie  Endow¬ 
ment  for  International  Peace,  123. 


OF  INTERNATIONAL  DISPUTES  1 5 

In  the  instructions  of  the  Department  of  State  of  the 
United  States  to  its  delegates  to  the  proposed  Panama 
Congress  of  1826  is  this  passage: 

“All  notion  is  rejected  of  an  amphictyonic  council,  in¬ 
vested  with  power  finally  to  decide  upon  controversies  be¬ 
tween  the  American  States,  or  to  regulate  in  any  respect 
their  conduct.” 

In  less  than  a  hundred  years  an  international  congress 
of  all  the  independent  nations  of  America  resolved  that  the 
principle  of  international  arbitration  was  accepted  as  a 
Pan-American  doctrine.  Between  1826  and  1890  the  peo¬ 
ples  of  America  had  become  better  acquainted  with  each 
other.  Their  institutions  had  become  more  similar.  With 
the  peaceful  revolution  in  Brazil  of  1889,  governments  re¬ 
publican  in  form  had  become  universal.  What  was  impos¬ 
sible  in  1826  became  a  fair  subject  of  consideration  in  1890. 

Reference  has  already  been  made  to1  the  fact  that  when 
Austria-Hungary,  in  July,  1914,  undertook  to  discipline 
her  little  neighbor  on  the  south,  she  was  asked  by  one  of 
the  Great  European  Powers  to  meet  the  others  in  a  diplo¬ 
matic  conference,  with  a  view  to  endeavoring  to  avoid  war. 
The  reply,  according  to  the  echo  of  the  talk  of  chancelleries 
which  reaches  the  public  ear  through  the  international 
press  organization,  was  that  such  a  great  nation  as  Austria- 
Hungary  could  not  be  expected  to  submit  the  propriety  of 
her  conduct  in  such  an  affair  to  the  judgment  of  a  European 
areopagus. 

Must  the  world  wait  for  the  twenty-first  century  before 
Europe  goes  as  far  as  America  has  done  in  advancing  the 


i6 


JUDICIAL  SETTLEMENT 


doctrine  that  there  are  other  and  better  remedies  than  war 
for  most  international  differences? 

May  not  and  should  not  the  pending  European  war  prove 
a  step  toward  the  erection  of  a  real  court  of  nations,  to 
speak  with  authority  and  without  partiality? 

It  is  the  common  understanding  that  all  the  methods  now 
existing  for  securing  peace  between  nations  at  difference 
were  tried  before  the  war  broke  out,  or  at  least  before  it  be¬ 
came  general,  and  were  tried  in  vain. 

At  the  outset  Austria-Hungary  had  made  diplomatic 
representations  to  Servia.  Failing  to  agree  with  her,  she 
had  presented,  on  July  23,  1914,  an  ultimatum.  It  con¬ 
templated  an  inquiry  into  the  existence  and  propagation  in 
Servia  of  an  unfriendly  spirit  toward  Austria-Hungary,  in 
making  which  Austria-Hungary  was  to  participate.  Servia 
refused  to  accept  all  the  conditions  required,  and  invoked 
the  interposition  of  the  Hague  Tribunal  of  Arbitration. 
Never  having  ratified  the  convention  under  which  it  was 
erected,  any  claim  of  hers  for  that  had  perhaps  been  fatally 
delayed.  Austria-Hungary  then,  on  July  28,  declared  war 
upon  her.  Meanwhile  there  had  been  tenders  of  counsel  to 
Austria-Hungary  from  various  quarters,  in  the  nature  of 
an  interposition  for  good  offices.  Until  the  day  of  the  issue 
of  her  declaration  of  war  negotiations  of  this  character 
were  proceeding  in  the  Russian,  Austrian  and  German  For¬ 
eign  Offices.  Great  Britain  had  also  proposed  a  formal 
diplomatic  conference.  This  plan  had  been  rejected  by  Ger¬ 
many,  though  accepted  by  Italy  on  July  27.  Germany  had 
accompanied  her  refusal  by  a  counter-proposal  to  the  effect 
that  Great  Britain  should  concur  in  the  endeavor  to  confine 


OF  INTERNATIONAL  DISPUTES  1 7 

any  war  that  might  result  between  Austria-Hungary  and 
Servia  strictly  to  the  territory  of  those  Powers,  and  let  this 
result  be  worked  out  through  pending  diplomatic  negotia¬ 
tions  between  St.  Petersburg  and  Vienna,  or  representations 
to  the  government  of  Servia  at  its  temporary  seat  at  Nish. 
Next  came  the  rupture  between  Germany  and  Russia  and 
Germany  and  France;  Germany’s  demands  on  Belgium; 
and  finally  a  proposal  from  her  to  Great  Britain,  which 
the  Prime  Minister  of  that  government  styled  as  “infa¬ 
mous,”  on  the  floor  of  the  House  of  Commons,  on  August  6. 
On  August  4  the  Emperor  of  Germany,  in  addressing  the 
Reichstag,  spoke  of  Russia  as  having  given  way  “to  an 
insatiable  nationalism”  by  siding  with  Servia,  “a  State 
which,  through  a  criminal  act,  had  brought  about  the 
calamity  of  this  war.”  He  also  alluded  to  the  course  of 
France  as  dictated  by  “malice.” 

When  the  men  in  power  in  the  great  nations  which  are 
now  at  war,  after  resort  to  all  the  methods  of  diplomacy, 
use  such  language  in  reference  to  sister  States,  it  seems  plain 
enough  that  the  world  has  thus  far  provided  no  efficient 
way  of  avoiding  offensive  war,  and  so  of  avoiding  defensive 
war. 

It  is  also  to  be  feared  that  the  offer  of  good  offices  made 
by  the  United  States  on  August  5,  1914,  came  too  late  to 
be  of  any  avail  at  the  present  juncture. 

Here,  then,  is  a  war  very  likely  to  cost  the  world  ten 
thousand  lives  and  ten  million  dollars  for  every  day  of  its 
continuance.  Diplomacy  has  done  its  best  to  circumscribe 
it  or  to  stop  it.  It  could  not  be  circumscribed,  it  could  not 
be  stopped,  unless  by  the  friendly  and  firm  interposition  of 


i8 


JUDICIAL  SETTLEMENT 


some  high  authority  which  the  public  opinion  of  the  world 
could  not  but  regard  with  respect. 

Arbitrators  could  hardly  now  be  selected  from  the  Hague 
Tribunal,  unless  those  selecting  them  looked  first  to  their 
probable  attitude  toward  the  contending  countries  and  the 
questions  to  be  decided.  Only  a  judicial  court,  the  members 
of  which  had,  before  the  war  broke  out,  been  chosen  from 
those  whose  character  and  training  gave  assurance  of  in¬ 
telligence  and  impartiality,  could  be  confidently  relied  on 
as  a  final  judge. 

There  are  few  controversies  between  nations  which  do 
not  involve  the  determination  of  points  of  law.  No  tribunal 
for  settling  such  controversies  can  be  as  effective  as  one 
whose  members  are  familiar  with  the  investigation  of  such 
points. 

The  justification  for  a  great  war  may  turn  on  a  pure 
question  of  law,  which  can  only  be  properly  settled  by  an 
abstract  definition  framed  by  experts  in  judicial  work. 

Germany  put  forward  the  claim,  as  presenting  a  castes 
belli,  that  on  August  3,  1914,  France  had  violated  the  neu¬ 
trality  of  Belgium  by  sending  military  airships  to  cruise 
over  its  territory.  The  soundness  of  this  position  (assum¬ 
ing  the  fact  to  be  as  thus  claimed)  must  rest  on  the  answer 
to  the  questions :  first,  whether  a  sovereign  owns  the  air 
above  his  territorial  possessions,  and  second,  whether,  how¬ 
ever  this  may  be,  he  is  responsible  for  its  police.  Is  the  air, 
in  other  words,  to  be  regarded  as  free,  like  the  sea  ? 

A  court  of  justice  could  decide  these  points  to  the  satis¬ 
faction  of  the  world.  No  other  authority  can. 

If  such  a  court  for  nations  as  this  Society  proposes  had 
existed  in  July,  1914,  it  is  not  utterly  impossible  that  Bel- 


OF  INTERNATIONAL  DISPUTES 


19 


gium  might  have  instituted  an  action  before  it  for  an  injunc¬ 
tion  against  the  flight  over  her  territory  of  military  air 
craft  under  authority  of  France,  and  obtained  an  early  de¬ 
cision  in  her  favor. 

But  one  thing  would  have  been  necessary  to  the  success  of 
such  a  reference  of  such  a  point,  and  that  is  the  support  of 
the  public  opinion  of  the  world. 

Of  course  the  functions  of  such  a  court  could  not  and 
would  not  be  confined  absolutely  to  the  decision  of  pure 
questions  of  law.  In  deciding  those,  it  could  not  be  wholly 
uninfluenced  by  the  spirit  of  the  civilization  of  the  day. 
But  that  spirit,  that  Zeitgeist ,  might  contribute  directly,  and 
even  avowedly,  to  the  reasons  of  a  judgment  upon  contro¬ 
versies  of  other  kinds.  A  judgment  is  a  moral  proceeding. 
It  must  accord  with  accepted  moral  standards.  The  most 
thoughtful  defenders  of  the  recent  declarations  of  war  in 
Europe  are  now  appealing  to  these  standards  as  a  justifica¬ 
tion.  Professor  Miinsterberg  of  Harvard  University,  for 
instance,  after  saying  that  they  were  the  necessary  outcome 
of  a  great  conflict  of  civilizations,  that  is,  of  Slavic  and 
Germanic  culture,  continues  thus: 

“If  this  war  means  such  an  inevitable  conflict  of  the 
Slavic  and  the  Germanic  world,  at  least  it  ought  to  be  clear 
to  everyone  who  can  think  historically  that  it  belongs  to  the 
type  of  war  for  which  the  world  as  yet  knows  no  substitute, 
the  one  type  of  war  which  in  spite  of  the  terrible  losses  is 
ultimately  moral.  Surely  no  comment  on  this  fight  of  the 
nations  is  more  absurd  than  the  frivolous  cry  that  this  is 
an  immoral  war.  Every  war  for  commercial  ends  or  for 
personal  glory  or  for  mere  aggrandizement  or  for  revenge 


20 


JUDICIAL  SETTLEMENT 


may  be  called  immoral,  and  thus  the  feelings  with  which 
Frenchmen  and  Englishmen  join  the  Slavic  forces  might 
justly  be  accused.  But  both  Slavs  and  Germans  stand  here 
on  moral  ground,  as  both  are  willing  to  sacrifice  labor  and 
life  for  the  conservation  of  their  national  culture  and  very 
existence.  Since  the  days  of  Napoleon  Germany  has  never 
gone  into  a  war  which  was  more  justified  by  the  conscience 
of  history.” 

Whether  such  appeals  to  morality,  as  a  foundation  of 
judgment  on  current  events,  be  well  or  ill-founded,  that 
they  are  made  is  no  small  proof  of  the  force  that  moral 
sentiment  has  in  the  decision  of  public  questions.  It  is  what, 
at  bottom,  more  than  any  other  thing,  moves  the  peoples 
of  the  modern  world. 

In  war  and  in  peace,  in  all  public  concerns,  public  opin¬ 
ion,  be  it  right  or  wrong,  is  king. 

Dr.  von  Bethmann-Hollweg,  the  Imperial  Chancellor  of 
Germany,  in  discussing  before  the  Reichstag,  on  March 
30,  19 1 1,  the  proposal  to  limit  naval  armaments  by  interna¬ 
tional  agreements,  said  that  it  was  visionary,  because  public 
opinion  might  at  any  time  force  a  war  for  which  the  Gov¬ 
ernment  would  be  unprepared.  “The  time,”  he  said,  “when 
wars  were  made  by  Cabinets  is  passed.  The  feelings  which 
here  in  Europe  may  lead  to  war  lie  elsewhere.  They  have 
their  roots  in  antagonisms  which  must  be  found  in  popular 
sentiment.  Everybody  knows  how  easily  this  sentiment  is 
influenced  and  how,  unfortunately,  in  many  cases  it  aban¬ 
dons  itself  helplessly  to  irresponsible  press  agitations.  A 
counterpoise  to  all  such  and  similar  influences  can  but  be  de- 


OF  INTERNATIONAL  DISPUTES 


21 


sired.  I  shall  be  the  first  to  welcome  it  whenever  interna¬ 
tional  efforts  succeed  in  creating  such  a  counterpoise/’ 

A  popular  sentiment  for  war  is  less  common,  though  it 
may  be  more  noisy,  than  a  popular  sentiment  for  trying 
all  reasonable  modes  of  avoiding  war,  Such  a  mode  would 
be  an  international  court  of  justice. 

The  wreck  and  disorder  now  facing  Europe  and  deso¬ 
lating  every  sea,  when  they  have  done  their  deadly  work, 
will  leave  behind  them  new  material  for  strengthening- 
public  opinion  throughout  the  world  in  favor  of  the  move¬ 
ment  toward  organized  peace — organized  through  courts 
open  to  all  and  respected  by  all. 

A  public  opinion  of  the  world  in  matters  of  immediate  and 
general  political  concern  has  only  become  possible  during  the 
last  half  century,  because  it  is  during  that  period  only  that 
the  telegraph  and  telephone,  supplemented  by  the  Universal 
Postal  Union,  have  annihilated  time  and  enabled  all  na¬ 
tions  to  share  the  news  of  every  day  in  common  company. 
Whatever  educates  that  public  opinion  toward  higher  levels 
and  strengthens  it  in  right  thinking  makes  for  justice  be¬ 
tween  nations,  and  helps  to  secure  it  by  just  such  methods 
as  have  been  found  best  suited  to  do  justice  between  men. 


SPECIAL  NOTICE. 


The  American  Society  for  Judicial  Settlement  of  International 
Disputes  was  formed  in  1910  for  the  purpose  of  promoting  the 
establishment  of  a  judicial  tribunal  which  would  perform  for  the 
nations  of  the  civilized  world  a  similar  service  to  that  which  is 
given  by  ordinary  courts  to  individuals,  and  of  encouraging 
recourse  to  such  a  tribunal  after  its  establishment. 

The  Society  has  now  been  in  existence  for  four  years. 

During  this  period  there  have  been  four  annual  conferences,  the 
printed  proceedings  of  which  have  been  a  valuable  acquisition  to 
libraries  and  to  all  interested  in  the  development  of  judicial  settle¬ 
ment  and  of  international  law;  men  of  distinguished  ability  and 
unquestioned  influence  contributed  the  papers,  some  of  which  have 
been  voluntarily  translated  into  French,  German,  Italian  and 
Spanish. 

Seventeen  quarterly  pamphlets,  each  containing  an  appropriate 
monograph  by  some  acknowledged  authority  on  subjects  tending 
to  advance  the  purpose  of  the  Society,  have  been  issued,  not  only 
to  members,  but  to  a  carefully  selected  list  of  30,000  names,  includ¬ 
ing  the  leading  law  schools  and  universities,  throughout  the  world. 

A  copy  of  all  publications  is  sent  to  the  foreign  office  of  every 
nation  and  to  the  heads  of  foreign  legations  in  Washington. 

There  is  a  widespread  and  growing  interest  in  the  work  of  the 
Society.  Hardly  a  day  passes  without  requests  not  only  from 
America  but  from  many  parts  of  the  world  for  copies  of  the 
pamphlets,  which  are  always  sent  free  of  charge.  The  Officers  and 
Executive  Committee  are  much  gratified  at  the  interest  awakened 
by  their  efforts,  but  are  obliged  to  issue  an  earnest  appeal  for  con¬ 
tributing  members  in  order  to  continue  the  work  on  the  present 
scale. 

The  object  of  the  founders  of  the  Society  was  to  give  it  a  large 
following,  and  so  there  were  three  classes  of  membership  estab¬ 
lished  (Life,  Sustaining  and  Annual),  with  equal  privileges,  leaving 
each  member  to  determine  what  he  would  give,  and  in  order  that  it 
might  be  beyond  the  reach  of  none,  the  subscription  for  annual 
membership  was  fixed  at  one  dollar.  At  the  same  time,  in  order  to 
obtain  a  more  adequate  income,  a  Sustaining  Membership  at  ten 
dollars  a  year  was  established.  But  for  the  generosity  of  one  or 
two  members,  the  work  could  not  have  been  brought  up  to  its 
present  standard.  While  there  has  been  a  very  gratifying  response 
to  the  appeals  for  membership,  the  income  from  this  source  is 
hardly  more  than  enough  to  pay  for  postage  and  the  cost  of  ad¬ 
dressing  envelopes. 

You  are  therefore  requested  to  do  what  you  can  to  help  the 
cause: 

1.  By  sending  your  subscription  for  membership,  if  you 
are  not  already  a  member. 

2.  By  asking  your  friends  to  become  members. 

3.  By  furnishing  lists  of  names  of  residents  of  your  com¬ 
munity  who  would  be  likely  to  take  an  interest  in  the 
work. 

Any  further  information  will  be  furnished  upon  application  to  the 
Assistant  Secretary,  Tunstall  Smith,  “The  Preston,”  Baltimore,  Md. 


Awrriraw  for  ilitMrtal  g»rttlrmrnt  of 

JnlmtatUmal  Staputro 


AiJtrtsorg  (Cnmtrtl 

Lyman  Abbott,  New  York. 

Edwin  A.  Alderman,  Virginia. 

James  B.  Angell,  Michigan. 

Simeon  E.  Baldwin,  Connecticut. 

Richard  Bartholdt,  Missouri. 

Alexander  Graham  Bell,  Washington,  D.  C. 

R.  L.  Borden,  Ottawa,  Ontario. 

Theodore  E.  Burton,  Ohio. 

Joaquin  D.  Casasus,  Mexico  City,  Mexico. 
George  A.  Chamberlain,  Oregon. 

Winston  Churchill,  New  Hampshire. 

George  B.  Cutten,  Wolfville,  N.  S. 

William  R.  Day,  Ohio. 

Jacob  M.  Dickinson,  Washington  D.  C. 

Andrew  S.  Draper,  New  York. 

Charles  W.  Eliot,  Massachusetts. 

William  Dudley  Foulke,  Indiana. 

James  Cardinal  Gibbons,  Maryland. 

George  Gray,  Delaware. 

Charles  Noble  Gregory,  Washington,  D.  C. 
Peter  S.  Grosscup,  Illinois. 

Bayard  Henry,  Pennsylvania. 

Joseph  F.  Johnston,  Alabama. 

David  Starr  Jordan,  California. 

Harry  Pratt  Judson,  Illinois. 

William  H.  King,  Utah. 

George  W.  Kirchwey,  New  York. 

Philander  C.  Knox,  Washington,  D.  C. 

Charles  F.  Libby,  Maine. 

Francis  B.  Loomis,  Washington,  D.  C. 

Horace  H.  Lurton,  Tennessee. 

R.  McBride,  Victoria,  B.  C. 

Pablo  Macedo,  Mexico  City,  Mexico. 

Charles  Marcil,  Ottawa,  Ontario. 

Sidney  E.  Mezes,  Texas. 

S.  C.  Mitchell,  South  Carolina. 

Don  Romulo  S.  Na6n,  Argentine  Republic. 
Francis  G.  Newlands,  Nevada. 

L.  Oppenheim,  Cambridge,  England. 

Thomas  Nelson  Page,  Washington,  D.  C. 
Walter  H.  Page,  New  York. 

W.  Peterson.  Montreal. 

Sir  Thomas  Raleigh,  London,  England. 
William  Renwick  Riddell,  Toronto,  Ontario. 
Uriah  M.  Rose,  Arkansas. 

A.  C.  Rutherford,  Edmonton,  Alberta. 

Walter  Scott,  Regina,  Saskatchewan. 

Albert  Shaw,  New  York. 

Hoke  Smith,  Georgia. 

Bishop  Robert  Strange,  North  Carolina. 

Sir  Charles  Hibbert  Tupper,  Vancouver,  B.  C. 
George  Turner,  Washington. 

Charles  R.  Van  Hise,  Wisconsin. 

Benjamin  Ide  Wheeler,  California. 

William  Allen  White,  Kansas. 

George  G.  Wilson,  Massachusetts. 

Prince  de  Cassano,  Italy. 


i 


Publications  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes 


1.  The  New  Era  of  International  Courts,  by  Simeon  E. 
Baldwin.  August,  1910. 

2.  The  Necessity  of  a  Permanent  Tribunal,  by  Ernest 
Nys.  November,  1910. 

Supplement — The  American  Society  for  Judicial  Settle¬ 
ment  of  International  Disputes,  by  James  Brown  Scott. 
November,  1910. 

3.  The  Importance  of  Judicial  Settlement,  by  Elihu  Root. 
February,  1911. 

4.  The  Development  of  the  American  Doctrine  of  Juris¬ 
diction  of  Courts  Over  States,  by  Alpheus  H.  Snow.  May, 
1911. 

5.  An  International  Court  of  Justice  the  Next  Step,  by 
George  Grafton  Wilson.  Salient  Thoughts,  by  Theodore 
Marburg.  August,  1911. 

6.  The  Work  of  the  Hague  Court,  by  N.  Politis.  No¬ 
vember,  1911. 

7.  The  Proposed  Arbitration  Treaties  with  Great  Britain 
and  France,  by  William  Howard  Taft.  February,  1912. 

8.  Non-Justiciable  Disputes  and  the  Peace  Treaties,  by 
Omer  F.  Hershey.  May,  1912. 

9.  The  International  Grand  Jury,  by  William  I.  Hull. 
August,  1912. 

10.  The  Court  of  Arbitral  Justice,  by  James  Brown  Scott. 
November,  1912. 

11.  Legal  Problems  Capable  of  Settlement  by  Arbitra¬ 
tion,  by  Charles  Cheney  Hyde.  February,  1913. 

12.  Precedent  and  Codification  in  International  Law,  by 
Paul  S.  Reinsch.  May,  1913. 

13.  International  Contractual  Claims  and  Their  Settle¬ 
ment,  by  Edwin  M.  Borchard.  August,  1913. 

14.  The  Supreme  Court  of  the  World,  by  Henry  B.  F. 
Macfarland.  November,  1913. 

15-16.  Status  of  the  International  Court  of  Justice,  by 
James  Brown  Scott.  Double  number.  February  and  May,  1914. 

17.  Justice  Between  Nations,  by  Simeon  E.  Baldwin. 
August,  1914. 


